By Ken Kobayash
HONOLULU – The federal government must pay $551,046 for the negligence of Tripler Army Medical Center in treating a woman whose pregnancy ended with the still birth of twins, a federal judge ruled this week.
Judge Harold Fong awarded the judgment to Marine Staff Sgt. Larry D. Wade and his wife, Vicky, whose pregnancy was terminated after 20 weeks in 1986.
The case also involved Fong issuing the first ruling by a judge here interpreting Hawaii law to permit viable fetuses to recover for damages under the wrongful death statute.
The issue, however, later became moot for the Wades’ case when it was determined that the fetuses were not viable, which is defined as being able to sustain life outside the womb.
In the decision this week, Fong found that because Mrs. Wade suffered from an “incompetent cervix,” Tripler doctors should have performed a suturing procedure called a cerclage to prevent premature delivery. But the doctors refused.
The Wades’ attorneys said Mrs. Wade then consulted a civilian doctor who tried to perform the procedure to save the twins. But she suffered complications that led the doctors to terminate her pregnancy.
“My clients are very pleased, and feel vindicated, and I think it was a very fair decision considering the devastating loss that they suffered,” attorney Thomas Grande said.
Grande said Tripler doctors knew about Mrs. Wade’s condition from a prior pregnancy, and she kept telling them she needed the suture, but they still refused.
“It was a heart-breaking case,” he said. Fong’s award covered $1,146 in funeral expenses, including doll clothes that Sgt. Wade purchased for the twins to wear for their burial.
Sgt Wade was stationed at Kaneohe Marine Corps Air Station at the time. The Wades, who have three children are now in North Carolina, where he is currently stationed. He returned to Hawaii for the federal trial from the Persian Gulf two days after the war there ended.
Fong’s pre-trial ruling last year on the issue of whether Hawaii’s “wrongful death” law permits recovery for viable fetuses was the first such decision by any court here, said Mark Davis, who also represented the Wades.
Other states have decided that issue. Thirty-three have permitted lawsuits for viable fetuses. Ten do not allow it.
In his ruling, Fong said early courts refused to recognize a claim because of problems related to proving the viability of the fetus, but modern courts do not go along with that line of reasoning in view of medical science providing a “better understanding” of the viability of fetuses, the means of their termination and the proper measure of damages in a case.
The majority view “represents the more logical and thoughtful holding,” he said.
The judge said the conclusion “comports with principles of fairness and justice in light of the fact that a liveborn child may sue for injuries suffered as a fetus.”
He predicted that the Hawaii Supreme Court will reach the same conclusion.
Fong refused to throw out claims filed in behalf of the fetuses at that time.
But Davis said they were later dismissed when most of the experts concluded that fetuses are not viable before 24 weeks.
contact Mark Davis